Hiram & Piran

Case [2024] FedCFamC1A 73

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Hiram & Piran [2024] FedCFamC1A 73

Appeal from: Hiram & Piran [2023] FedCFamC2F 1330
Appeal number: NAA 314 of 2023
File number: DUC 438 of 2020
Judgment of: ALDRIDGE J
Date of judgment: 7 May 2024
Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the parties agreed the primary judge erred – The Court must be satisfied the primary judge has erred – Double counting of a matrimonial debt – Counting of assets not included in the balance sheet – Asserted error established – Appeal allowed – Proposed orders are just and equitable – Consent orders made in re-exercise of discretion – Costs certificates granted.
Legislation: Federal Proceedings (Costs) Act 1981 (Cth)
Cases cited:

Bhatnagar & Riju [2018] FamCAFC 144

Heidari & Ebadi [2020] FamCAFC 316
Number of paragraphs: 13
Date of last submissions: 16 April 2024
Date of hearing: Determined in chambers on the papers
Counsel for the Appellant: Mr Alexander
Solicitor for the Appellant: Campbell Paton & Taylor
Counsel for the First Respondent: Dr Barnett SC
Solicitor for the First Respondent: Blackwell Short
The Second Respondent: Self-represented litigant

ORDERS

NAA 314 of 2023
DUC 438 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR HIRAM

Appellant
AND:

MS PIRAN

First Respondent

MS CORNETT

Second Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

7 MAY 2024

THE COURT ORDERS BY CONSENT THAT:

1.Appeal NAA 314 of 2023 is allowed.

2.Orders 1, 2, 3, 4 and 5 made by the primary judge on 18 October 2023 are set aside.

3.In lieu thereof:

(a)The first respondent shall pay to the appellant on or before the expiry of 75 days from the date of these orders, the sum of $143,929 by way of property settlement.

(b)Simultaneous with the payment in Order 3(a) above, the first respondent shall refinance the mortgage secured over B Street Suburb C (“the home”) into her sole name and the appellant shall transfer to the first respondent his right, title and interest in the home being the whole of the land in folio identifier…

(c)The first respondent shall indemnify the appellant with respect to any sum due and owing, including interest, to the second respondent, noting that she has already paid the sum of $201,000.

(d)In the event the sum in Order 3(a) is not paid by the due date, or the first respondent has not complied with Order 3(b), the appellant and first respondent shall do all things including appointing a selling real estate agent and conveyancer and cause the home to be listed for sale by private treaty within 100 days of the date hereof.

(e)Upon sale of the home the proceeds are to be disbursed in the following priority:

i.In payment of the real estate agent’s costs and commission;

ii.In payment of conveyancing costs;

iii.In a sum sufficient to discharge the mortgage secured over the home; and

iv.In payment of the net pool of assets so…

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Hiram & Piran [2024] FedCFamC1A 73
Case
[2024] FedCFamC1A 73
Decision Date

CaseChat Overview and Summary

This appeal arises from a dispute between Mr Hiram and Ms Piran over the division of property following their separation. The Federal Circuit and Family Court of Australia, Division 1 Appellate Jurisdiction, was tasked with reviewing the primary judge's decisions in this matter. The appeal hinged on whether the primary judge had erred in his assessment and division of the matrimonial assets and debts, specifically whether he double-counted a matrimonial debt and failed to include certain assets in the balance sheet.

The court found that the primary judge did indeed err in his calculations. The primary judge had mistakenly double-counted a matrimonial debt, which led to an incorrect division of the net pool of assets. Additionally, the court noted that the primary judge had not included certain assets in the balance sheet, which further affected the final property settlement. These errors were significant enough to warrant a re-evaluation of the property settlement. Consequently, the appeal was allowed, and the primary judge's orders were set aside.

In light of the errors identified, the court made new orders by consent. Ms Piran was required to pay Mr Hiram $143,929 within 75 days and to refinance the mortgage on their home into her sole name. Mr Hiram, in turn, was to transfer his interest in the home to Ms Piran. If Ms Piran failed to meet these obligations, the home would be listed for sale, with the proceeds distributed according to a specified priority. The court also granted costs certificates to both parties, allowing them to seek reimbursement of their legal costs from the Attorney-General. Finally, the parties agreed on the outstanding debts to the second respondent, with Ms Piran indemnifying Mr Hiram for any remaining amounts.

Orders

Orders of the court

NAA 314 of 2023

DUC 438 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR HIRAM

Appellant

AND:

MS PIRAN

First Respondent

MS CORNETT

Second Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

7 MAY 2024

THE COURT ORDERS BY CONSENT THAT:

1. Appeal NAA 314 of 2023 is allowed.

2. Orders 1, 2, 3, 4 and 5 made by the primary judge on 18 October 2023 are set aside.

3. In lieu thereof:

(a) The first respondent shall pay to the appellant on or before the expiry of 75 days from the date of these orders, the sum of $143,929 by way of property settlement.

(b) Simultaneous with the payment in Order 3(a) above, the first respondent shall refinance the mortgage secured over B Street Suburb C (“the home”) into her sole name and the appellant shall transfer to the first respondent his right, title and interest in the home being the whole of the land in folio identifier…

(c) The first respondent shall indemnify the appellant with respect to any sum due and owing, including interest, to the second respondent, noting that she has already paid the sum of $201,000.

(d) In the event the sum in Order 3(a) is not paid by the due date, or the first respondent has not complied with Order 3(b), the appellant and first respondent shall do all things including appointing a selling real estate agent and conveyancer and cause the home to be listed for sale by private treaty within 100 days of the date hereof.

(e) Upon sale of the home the proceeds are to be disbursed in the following priority:

i. In payment of the real estate agent’s costs and commission;

ii. In payment of conveyancing costs;

iii. In a sum sufficient to discharge the mortgage secured over the home; and

iv. In payment of the net pool of assets so that the appellant receives 44 per cent and the first respondent receives 56 per cent.

4. The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

5. The first respondent is granted a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the first respondent in respect of the costs incurred by the first respondent in relation to the appeal.

AND THE COURT NOTES THE AGREEMENT OF THE PARTIES THAT:

A. In relation to the amounts owed by the appellant and first respondent to the second respondent:

i. The first respondent informs the Court that she has already paid $201,000 to the second respondent, which payment is acknowledged by the second respondent;

ii. The second respondent releases the appellant in relation to any and all remaining amounts owing by him to her;

iii. The remainder of the debt is otherwise confirmed and acknowledged by the first respondent; and

iv. The first respondent indemnifies the appellant in relation to any amounts owing to the second respondent, including in relation to interest.

B. The time for compliance with Order 1 made on 27 July 2023 shall take effect on or before the date that is 75 days after the date of the making of these orders, simultaneously with Order 3(a) and 3(b).

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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